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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Whitehead [1837] NSWSupC 10

Aborigines, killing of - murder - Port Phillip

Supreme Court of New South Wales

Dowling A.C.J., 3 March 1837

Source: Australian, 7 March 1837[1 ]

SUPREME COURT. - (Criminal Side.)

Friday. - Before His Honor the Acting Chief Justice, and a Military Jury.

John Henry Whitehead was indicted for the wilful murder of Kurakoi, an aboriginal black, at Port Philip, on the 17th day of October last.

Edward Freestone - On the 17th day of October last I was assisting the prisoner in unloading a dray of hurdles, when he cried out, ``here is a black fellow," and appeared to be very much alarmed; we had no fire-arms; the prisoner said he saw some spears with the black; on the black coming up I enquired his name, he said it was Kilgoran; on the overseer coming up some short time afterwards, however, I discovered that he had given me a false name, as the name by which he was known, both among the settlers and his own tribe, was Kuragoi, a notorious character; he recognised me, and on my giving him to understand that I did not know him, he brought circumstances to my recollection by which I knew that we had on one occasion travelled together; I went away in a short time to a place about a quarter a mile off; I had been there some time, when I heard a wild cry like that of a native, which lasted for about ten minutes, then a shot was fired in the direction of the tent where I left Whitehead and the black; then there was hallooing, and another shot, which alarmed me, as I thought the natives had come down, and we had no fire-arms with us; I was then leaving the cattle to proceed to the tents when I heard a third shot fired but no more crying out.  I saw Taylor, the overseer, coming towards me, and we went together to the tent; before I got there I saw the prisoner coming from the river; on coming up he said the black fellow had run away; Taylor asked why he let him go; prisoner said he let him go because he made such a noise, and he was frightened lest the natives should come down upon him, as he was alone; I then went towards the tent; on one side of the tent was a large tree, near which I saw lying the opossum-skin rug that was worn by the black when I last saw him, on which, and on the trunk of the tree was blood; Taylor walked about as if much agitated, and said to the prisoner, -- I fear, Jack, you have murdered the man!  There was a piece of cord round the tree which Taylor took off, and with a spade commenced taking off the blood; it was then dinner-time; while at dinner the conversation was almost entirely respecting the native; I said I knew the rug as one that belonged to Mr. Fergusson, and that it was taken from the persons who had been murdered by the blacks four months before; I had mended it for Mr. Fergusson, which made me recollect it; I wanted the rug that I might return it to its original owner, but Taylor would not let me have it, saying it should be burnt; the prisoner afterwards told me that he shot the native because from his shooting he was afraid of his tribe coming down to murder him; I said as the fellow was tied to the tree he could not have injured him; in reply to my question on the subject, he said he threw the body into the river; I do not know of any search being made for the body; I never saw it.

Cross-examined - When I heard the black crying out, I imagined that he was calling upon his tribe to come out of the forest close by; when I left the black at the tree there were four men there; it is only known that the aborigine was shot by the prisoner's own statement to that effect, and he always said he was induced to do so by the cries of the man (as he supposed) for his tribe; I did not consider it at all unreasonable that he should have been alarmed under the circumstances, as the cries alarmed me who had been accustomed to the natives for some time, and prisoner was almost a stranger to them, and the tribes were generally very numerous in that neighbourhood from its being their hunting ground.

James Flit - On the 17th of October last, about ten o'clock in the forenoon, two men (Jemott and Wilson, on Captain Swanston's establishment) called to me across the river at the bottom of my garden, saying that they had got Kurakoi, and wished to know what I would have done with him; I went directly from my house to Captain Swanston's establishment, where I saw Mr. Taylor, the person in charge, and enquired to see Kurakoi; in consequence of information communicated by Taylor, I went down to the river and found a string of native manufacture lying along the bank of the river; on pulling it I hauled at length a dead body of a native to the surface; I examined it; it was the body of Kurakoi; in half an hour afterwards I saw the prisoner in conversation with Taylor; prisoner said he was sorry, but he could not help it, or he would have had to abide the consequences.

Cross-examined - I do not know where Jemott and Wilson are; they came up to Sydney in the Rattlesnake to give evidence on this trial; I understand Taylor is in Van Diemen's Land; I saw him in Launceston in January; I have good reason to know Kurakoi; he had been living at my station for fourteen days on the 6th September, when he came to me and said that as he had been unsuccessful in kangarooing there, he would now go to a wood where he knew there was plenty, and in eight or ten days he would return and pay me for my kindness to him and his wife; he went away; the next morning, about nine o'clock, I was coming out of the door of my hut, having no idea of any person being there, and in the act of stooping to the door, when I received a blow on the back of my head from a tomahawk which cleaved my scull; I saw it was Kurakoi; on recovering from the stun, I made a rush at him, but he being naked and his body greased, he eluded my grasp, and turned the corner of the hut; I returned into the hut and took a piece, which I levelled at him, but it snapped and he got away; I have every reason to believe that there were other blacks in the vicinity; it was in reference to this affair that Jemott and Wilson came to inform me they had secured Kurakoi; it must have been from a suspicion that he would be detained, if discovered, that he gave himself a false name when interrogated at the hut; if I were alone with him, and he were making a great noise, I should consider myself in danger, although he were tied up, because a party of blacks may be within twenty yards of a person, and yet be completely out of sight; I believe that if any one had him in custody, and he managed to loose himself, that he would kill his keepers unless he were first disabled; prisoner told me that when he shot Kurakoi, he was fearful of being himself killed by either him or his party; I have known several instances at Port Philip of a single native coming to reconnoitre a place while a large party were waiting in the vicinity.

The case for the prosecution being closed, Mr. Windeyer submitted to the Court that the name the aborigine gave himself, which according to the evidence they had heard was Kilgoran, must be taken to be his true name, and on this ground, the prisoner must be acquitted, as he was indicted for the murder of a man named Kurakoi.  If, however, Kurakoi be his true name, there was good ground to suspect his intentions when he assumed another.

Prisoner put in a written defence, stating that the witnesses he had subpoened had been in attendance, but as the trial was postponed, it was not expected to come on before the next Sessions, and they had all gone away he knew not where.

Mr. Windeyer recalled Mr. Freestone, who deposed that the deceased black was treated with the greatest kindness both by the prisoner and the other men, until Taylor discovered that Kilgoran was an assumed name; Taylor knew him to be the Kurakoi who was renowned for his outrages upon the settlers, and who had attempted the life of Captain Flitt; Taylor then had him bound to a tree with a kind of cord of native manufacture, and sent Jemott and Wilson to inform Captain Flitt of his capture.

His Honor summed up very minutely, and left the case in the hands of the Jury, who pronounced a verdict of Not Guilty, and the prisoner was discharged, with a caution from the Judge how he comported himself towards the Aborigines for the future; as, if he had been convicted by the Jury, he would inevitably have suffered the utmost penalty of the law.



[1 ] This report was reproduced by the Sydney Gazette on 9 March 1837. See also Dowling, Proceedings of the Supreme Court, Vol. 133, State Records of New South Wales, 2/3317, p. 127, spelling the victim's name as Curacoine.  At the end of this judge's notebook account of the trial, at p. 151, there is a short statement written by the prisoner:

``May it please Your Honor

``Gentlemen of the Jury.

``The lonely situation in which I was placed at the period of this transaction leaves me but little to adduce in my Defence.  I am even without the common aid of being enabled to call Evidences in my behalf in consequence of this trial having been postponed, they were in attendance before the Court adjourned, but since removed to their residence.

``It is to be hoped there has been enough shewn by the prosecuting witnesses to establish my plea of Justifiable Homicide, as the deceased was of a most ferocious character.  I was left in charge of him, among his own wild tribe, and in a lonely and unprotected place, by what means he unbound himself I cannot describe but on removing my eyes from him, and replacing them, the act almost of a moment, I discovered the deceased unbound and in the act of approaching me with an axe in his hands, and uplifted, dreading my life, the first impulse was to raise the loaded piece I had in my custody with a view of intimidating him, when the piece exploded without a full intention on my part.  [lines deleted] the agitation of mind, and the apprehension of his Tribe having heard the shot and coming to the spot and murdering me caused me to remove the Body as well deny the occurrence to my party, till I considered myself and them, out of their reach.  Gentlemen, the place of the transaction at that time, was not as the protected parts of this Colony, and the character of the deceased bore, and other Circumstances I trust in the absence of all testimony but my own statement will be sufficient to exonerate me [lines deleted, including signature of John Henry Whitehead]  from any imputation of maliciously or feloniously committing the act to which I was impelled by the necessity of the moment.  The blood upon the tree was occasioned by the deceased's rubbing his back to get loose."

On 22 April 1837, the Sydney Gazette claimed that Whitehead's conduct led to the subsequent killing of two whites in revenge for the death of the Aborigine.

For the details of the Aboriginal missions in the Port Phillip district (and a proposal for a native constabulary), see Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, pp 294-304.

Published by the Division of Law, Macquarie University